Citation Nr: 1030246
Decision Date: 08/12/10 Archive Date: 09/09/10
Citation Nr: 1030246
Decision Date: 08/12/10 Archive Date: 08/24/10
DOCKET NO. 04-10 423 ) DATE AUG 12 2010
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia
THE ISSUES
1. Entitlement to a rating in excess of 20 percent for varicose
veins of the right lower extremity, prior to May 7, 2007.
2. Entitlement to a rating in excess of 20 percent for varicose
veins of the left lower extremity, prior to May 7, 2007.
3. Entitlement to a rating in excess of 40 percent for varicose
veins of the right lower extremity, from May 7, 2007.
4. Entitlement to a rating in excess of 40 percent for varicose
veins of the left lower extremity, from May 7, 2007.
5. Entitlement to an effective date earlier than May 7, 2007,
for the grant of a total rating based on individual
unemployability (TDIU).
REPRESENTATION
Veteran represented by: Joseph R. Moore, Attorney
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. Vavrina, Counsel
INTRODUCTION
The Veteran served on active duty from September 1947 to June
1952.
These matters came before the Board of Veterans' Appeals (Board)
initially on appeal from a March 2003 rating decision, in which
the RO assigned separate 20 percent ratings for varicose veins
for each lower extremity, effective January 20, 1998.
In July 2005, the Veteran testified during a Travel Board hearing
before a Veterans Law Judge (VLJ) at the RO; a copy of the
transcript is of record.
In a September 2005 decision, the Board denied entitlement to
separate ratings in excess of 20 percent for varicose veins of
each lower extremity. The Veteran perfected an appeal of the
Board's denial to the United States Court of Appeals for Veterans
Claims (Court). By a June 2006 Order, the Court granted a June
2006 Joint Motion for Remand (joint motion), vacating the Board's
September 2005 decision and remanding the case to the Board to
action consistent with the parties' joint motion.
In October 2006, the Veteran was advised that the VLJ who had
presided over the July 2005 hearing was no longer employed by the
Board. So the Veteran was informed of his right to have another
hearing before another VLJ who would ultimately decide his
appeal. But the Veteran did not respond within the stipulated 30
days from the date of the letter; therefore, the Board assumed
that he did not want an additional hearing.
In November 2006, the Board remanded the appeal to the RO via the
Appeals Management Center (AMC), in Washington, DC.
In a January 2008 rating decision issued in February 2008, the RO
assigned separate 40 percent ratings for varicose veins of each
lower extremity, effective May 7, 2007, the date of VA
examination. As increased ratings are available at each stage
and the Veteran is presumed to seek the maximum available benefit
for a disability, the claims for increased ratings remain on
appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Later, in May
2008 rating decision, the RO, in pertinent part, granted a TDIU,
effective May 7, 2007. The Veteran perfected an appeal to the
effective date assigned for the TDIU. Thus, the issues on appeal
are the five listed on the title page. In an October 2009
decision, the Board denied the Veteran's claims.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
In a June 1, 2001 letter, the Veteran's attorney indicated that a
VA Form 21-2680 completed by the Veteran's treating VA vascular
surgeon concerning his claim for entitlement to special monthly
compensation (SMC) based on the need for aid and attendance
appeared not to have been associated with the claims file at the
time of the March 10, 2010 rating decision, denying his claim and
asks that the claim be readjudicated. Thus, the issue of
entitlement to SMC based on the need for aid and
attendance has not been readjudicated by the agency of
original jurisdiction (AOJ). Therefore, the Board does
not have jurisdiction over it, and it is referred to the
AOJ for appropriate action.
ORDER TO VACATE
The Board may vacate an appellate decision at any time upon
request of the appellant or his or her representative, or on the
Board's own motion, when an appellant has been denied due process
of law or when benefits were allowed based on false or fraudulent
evidence. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.904
(2009).
On September 23, 2009, the Veteran's attorney requested that the
RO transfer the claims file to the Board, noting that a
supplemental statement of the case (SSOC) had been issued in July
2009 and that the case was ready for Board adjudication.
Additionally, the Veteran's attorney had requested, that the
Board provide him with written notice that the claims file had
arrived at the Board and that a 90-day stay be granted from the
date of such notice. Unbeknown to the Veteran's attorney, the
claims file had already been transferred to the Board. In a
November 6, 2009 letter, the Veteran's attorney indicated that,
during a telephone conversation on September 14, 2009, the RO had
indicated that the Veteran's claim file was still at the RO and
would most likely not be certified to the Board for at least 30
days; that, during another telephone conversation on October 9,
2009, the RO indicated that it had received the earlier September
2009 request for a stay and that the claims file was still at the
RO; and that the Board did not ever provide notice that it had
received the claims file nor did it issue a 90-day stay, noting
that the Board's decision was issued less than two weeks after
the RO's October 9, 2009 confirmation that both the claims file
and the September 2009 request for a stay were both in the RO's
possession. Thus, the Veteran's attorney concluded correctly
that the September 2009 request for a stay had not been
associated with the claims file at the time of the Board's
decision, on October 22, 2009. He argued that, through the
result of VA's actions, the Veteran was denied the right to
representation before the Board and therefore respectfully
requested that the Board vacate the October 2009 decision.
As noted above, after further investigation, the Board has
determined that the Veteran and his attorney were never notified
that his claims file had been transferred to the Board nor was
his September 2009 request for a 90-day stay associated with the
claims file prior to the issuance of the October 22, 2009 Board
decision. Thus, the Veteran has been denied due process of the
law. See 7104(a) (West 2002); 38 C.F.R. § 20.904(a) (2009).
Accordingly, the October 22, 2009 Board decision, addressing
entitlement to ratings in excess of 20 percent, prior to May 7,
2007, and in excess of 40 percent, from May 7, 2007, for varicose
veins for each lower extremity and to an effective date earlier
than May 7, 2007, for the grant of a TDIU, is vacated. A new
decision, will be entered as though the October 22, 2009,
decision had not been made, following grant of a 90-day stay as
requested by the Veteran's attorney.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Citation Nr: 0940187
Decision Date: 10/22/09 Archive Date: 10/30/09
DOCKET NO. 04-10 423 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Huntington, West Virginia
THE ISSUES
1. Entitlement to a rating in excess of 20 percent for
varicose veins of the right lower extremity, prior to May 7,
2007.
2. Entitlement to a rating in excess of 20 percent for
varicose veins of the left lower extremity, prior to May 7,
2007.
3. Entitlement to a rating in excess of 40 percent for
varicose veins of the right lower extremity, from May 7,
2007.
4. Entitlement to a rating in excess of 40 percent for
varicose veins of the left lower extremity, from May 7, 2007.
5. Entitlement to an effective date earlier than May 7,
2007, for the grant of a total rating based on individual
unemployability (TDIU).
REPRESENTATION
Veteran represented by: Joseph R. Moore, Attorney
WITNESS AT HEARING ON APPEAL
Veteran
ATTORNEY FOR THE BOARD
M. Vavrina, Counsel
INTRODUCTION
The Veteran served on active duty from September 1947 to June
1952.
These matters came before the Board of Veterans' Appeals
(Board) initially on appeal from a March 2003 rating
decision, in which RO assigned separate 20 percent ratings
for varicose veins for each lower extremity, effective
January 20, 1998.
In July 2005, the Veteran testified during a Travel Board
hearing before a Veterans Law Judge (VLJ) at the RO; a copy
of the transcript is of record.
In a September 2005 decision, the Board denied entitlement to
separate ratings in excess of 20 percent for varicose veins
of each lower extremity. The Veteran perfect an appeal of
the Board's denial to the United States Court of Appeals for
Veterans Claims (Court). By a June 2006 Order, the Court
granted a June 2006 Joint Motion for Remand (joint motion),
vacating the Board's September 2005 decision and remanding
the case to the Board to action consistent with the parties'
joint motion.
In October 2006, the Veteran was advised that the VLJ who had
presided over the July 2005 hearing was no longer employed by
the Board. So the Veteran was informed of his right to have
another hearing before another VLJ who would ultimately
decide his appeal. But the Veteran did not respond within
the stipulated 30 days from the date of the letter;
therefore, the Board assumed that he did not want an
additional hearing.
In November 2006, the Board remanded the appeal to the RO via
the Appeals Management Center (AMC), in Washington, DC.
In a January 2008 rating decision issued in February 2008,
the RO assigned separate 40 percent ratings for varicose
veins of each lower extremity, effective May 7, 2007, the
date of VA examination. As increased ratings are available
at each stage and the Veteran is presumed to seek the maximum
available benefit for a disability, the claims for increased
ratings remain on appeal. AB v. Brown, 6 Vet. App. 35, 38
(1993). Later, in May 2008 rating decision, the RO, in
pertinent part, granted a TDIU, effective May 7, 2007. The
Veteran perfected an appeal to the effective date assigned
for the TDIU. Therefore, the issues on appeal are the five
listed on the title page.
As a final preliminary matter, the Board notes that,
throughout much of the pendency of the appeal, the appellant
was represented by the Veterans of Foreign Wars of the United
States. However, in a December 2006 VA Form 21-22a, the
Veteran indicated that he is now represented by the private
attorney listed above; the Board recognizes the change in
representation.
Please note this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
FINDINGS OF FACT
1. Prior to May 7, 2007, the Veteran's varicose veins of the
right and left lower extremities were manifested by periodic
edema, discomfort of the legs and feet, and incompetent
valves of superficial veins; they were not manifested by
persistent edema or subcutaneous induration, stasis
pigmentation or eczema, with or without intermittent
ulceration.
2. From May 7, 2007, the manifestations of the Veteran's
varicose veins of the right and left lower extremities more
nearly approximated persistent edema and, at times, stasis
pigmentation, with or without intermittent ulceration; they
were not manifested by persistent edema and persistent
ulceration or massive board-like edema with constant pain at
rest.
3. The Veteran's claim for an increased rating, to include a
TDIU, was received by the RO on January 20, 1999.
4. Prior to May 7, 2007, there was no indication that a
referral for an extraschedular rating was warranted because
the Veteran was unable to obtain or retain substantially
gainful employment due solely to his service-connected
disabilities.
5. The earliest date on which it was factually ascertainable
that the Veteran's varicose veins met the schedular criteria
for a TDIU under 38 C.F.R. § 4.16(a) and precluded him from
substantially gainful employment is May 7, 2007.
CONCLUSIONS OF LAW
1. Prior to May 7, 2007, the criteria for a rating in excess
of 20 percent for varicose veins of the right upper extremity
were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 3.114, 3.321, 4.1-4.7, 4.104, Diagnostic Code 7120 (2006).
2. Prior to May 7, 2007, the criteria for a rating in excess
of 20 percent for varicose veins of the left lower extremity
were not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 3.114, 3.321, 4.1-4.7, 4.104, Diagnostic Code 7120 (2006).
3. From May 7, 2007, the criteria for a rating in excess of
40 percent for varicose veins of the right upper extremity
have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 3.321, 4.1-4.7, 4.104, Diagnostic Code 7120 (2009).
4. From May 7, 2007, the criteria for a rating in excess of
40 percent for varicose veins of the left lower extremity
have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 3.321, 4.1-4.7, 4.104, Diagnostic Code 7120 (2009).
5. The criteria for an effective date prior to May 7, 2007,
have not been met. 38 U.S.C.A. §§ 5110 (West 2002);
38 C.F.R. §§ 3.1, 3.151, 3.157, 3.321, 3.340, 3.341, 3.400,
4.15, 4.16, 20.302, 20.1103 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009) and 38
C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).
Proper VA notice must inform the claimant of any information
and evidence not of record that is necessary to substantiate
the claim, what VA will seek to provide, and what the
claimant is expected to provide. 38 U.S.C.A. § 5103(a);
C.F.R. § 3.159(b)(1). Pursuant to recent regulatory
revisions, however, the third sentence of 38 C.F.R.
§ 3.159(b)(1), which had stated that VA will request the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, has been removed from that
section effective May 30, 2008. 73 Fed. Reg. 23,353-23,356
(Apr. 30, 2008).
In rating/TDIU cases, a claimant must be provided with
information pertaining to assignment of disability ratings
(to include the rating criteria for all higher ratings for a
disability), as well as information regarding the effective
date that may be assigned. Dingess v. Nicholson, 19 Vet.
App. 473 (2006).
More recently, in Vazquez-Flores v. Peake (Vazquez-Flores I),
22 Vet. App. 37 (2008), the Court held that, at a minimum,
adequate VCAA notice requires that VA notify the claimant
that, to substantiate an increased rating claim: (1) the
claimant must provide, or ask VA to obtain, medical or lay
evidence demonstrating a worsening or increase in severity of
the disability and the effect that worsening has on the
claimant's employment and daily life; (2) if the diagnostic
code under which the claimant is rated contains criteria
necessary for entitlement to a higher disability rating that
would not be satisfied by the claimant demonstrating a
noticeable worsening or increase in severity of the
disability and the effect of that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant; (3)
the claimant must be notified that, should an increase in
disability be found, a disability rating will be determined
by applying relevant diagnostic codes; and (4) the notice
must also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask VA to obtain)
that are relevant to establishing entitlement to increased
compensation. The United States Court of Appeals for the
Federal Circuit (Federal Circuit) vacated Vazquez-Flores I in
Vazquez-Flores v. Shinseki (Vazquez-Flores II), --- F.3d ----
, 2009 WL 2835434 (Fed. Cir. Sept. 4, 2009) (Nos. 2008-7150,
2008-7115). In Vazquez-Flores II, the Federal Circuit held
that the notice described in 38 U.S.C. § 5103(a) need not be
veteran specific and does not require the VA to notify a
veteran of the alternative diagnostic codes or of potential
daily life evidence.
Compliant notice must be provided to a claimant before the
initial unfavorable decision on a claim for VA benefits by
the agency of original jurisdiction (in this case, the RO).
See Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also
Disabled American Veterans v. Secretary of Veterans Affairs,
327 F.3d 1339 (Fed. Cir. 2003). However, the notice
requirements may, nonetheless, be satisfied if any errors in
the timing or content of such notice are not prejudicial to
the claimant. Id.
In the present case, the Veteran initially was notified of
the information and evidence needed to substantiate his
claims for increased ratings for his varicose vein
disabilities and for TDIU in January 2003 and March 2008 pre-
rating letters, respectively. Letters dated in March 2008
and August 2008 also notified the Veteran how a disability
rating and an effective date for the award of benefits is
assigned and complied with the notice requirements in Dingess
and Vazquez-Flores I and II.
After the Veteran and his representative/attorney were
afforded opportunity to respond to the notice identified
above, supplemental statements of the case (SSOCs) issued in
February, April and June of 2009 reflect readjudication of
the increased rating and earlier effective date claims on
appeal. Hence, while some of the notice was provided after
the initial rating actions on appeal, the Veteran is not
shown to be prejudiced by the timing of the compliant notice.
See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the
issuance of a fully compliant notification followed by
readjudication of the claim, such as in a statement of the
case (SOC) or an SSOC, is sufficient to cure a timing
defect).
In addition, VA has fulfilled its duty to assist in obtaining
identified and available evidence needed to substantiate the
claims decided herein. The Veteran's service treatment
records, post-service VA treatment records, identified
private treatment records, and private physician statements
have been obtained. Additionally, he has been afforded
several VA examinations for his varicose vein disabilities,
the most recent one in May 2007, which the Board finds is
adequate for rating purposes. See Barr v. Nicholson, 21.
Vet. App. 303 (2007). Given the foregoing, the Board finds
that VA has substantially complied with the Board's previous
remands with regard to the claims decided herein. See Dyment
v. West, 13 Vet. App. 141, 146-47 (1999).
With respect to the Veteran's claims, there is no additional
notice that should be provided, nor is there any indication
that there is additional existing evidence to obtain or
development required to create any additional evidence to be
considered in connection with the claims herein decided.
During the March 2008 VA examination, the Veteran first
indicated that he had received Social Security Administration
(SSA) disability, following his retirement in 1986. Since
the Veteran's increased rating claim was not received until
1999, any SSA disability records would not affect the claims
decided herein, as by the mid-1990's the Veteran was no
longer receiving SSA disability benefits, but SSA retirement
benefits and, as such any earlier non-VA/service department
medical records would not affect the outcome of the claims on
appeal. This is particularly so even though SSA determined
that the Veteran was unemployable, as VA may not consider
such records until they are received. See 38 C.F.R.
§ 3.157(b)(2). Consequently, any error in the sequence of
events or content of the notice is not shown to prejudice the
Veteran or to have any effect on the matters decided on
appeal. Any such error is deemed harmless and does not
preclude appellate consideration of the matters herein
decided, at this juncture. See Shinseki v. Sanders, 129 S.
Ct. 1696 (2009) (holding that a party alleging defective
notice has the burden of showing how the defective notice was
harmful).
II. Background
A January 1981 discharge summary from the Maryland General
Hospital reflects that the Veteran was admitted for bilateral
venous ligation and stripping of moderately severe
varicosities, most marked on the left. Bilateral high-low
and multiple point venous ligation and stripping was
performed on January 7, 1981. A week later at discharge, his
condition was noted to be improved.
In December 1983, the Veteran had coronary artery bypass
surgery performed at The Johns Hopkins Hospital.
An April 1984 VA examination report reflects a history of
severe varicose veins on both legs. He had had two episodes
of thrombophlebitis and one episode of ulcer of the foot.
Stripping of the varicose veins was done on both legs in
1981. The Veteran denied any leg pains, swelling, or ulcers
of either leg following the 1981 surgery.
On March 27, 1996, the Veteran was admitted for complaints of
swelling and pain in the left upper thigh of approximately
one-week's duration. The Veteran had multiple medical
problems, including superficial varicose veins, peripheral
vascular disease (PVD), status post vein stripping of both
lower extremities in 1981, coronary artery disease (CAD),
hypertension, and status post coronary artery by-pass
grafting (CABG) surgery in 1983. On admission he appeared to
be in mild distress, due to pain in his left upper leg.
Examination of the left leg revealed moderate edema,
erythema, and mild rubor, mainly on the medial aspect with an
enlarged cord extending from the inguinal area down to the
knee. He underwent excision of the left superficial
saphenous vein with thrombosis on April 8, 1996. After three
days of observation, the wound was healing well and he was
discharged on April 11, 1996. A May 1996 VA follow-up
reflects that the surgery was successful and that the Veteran
had no new complaints. He had varicose veins above and below
his knees on both legs. During a June 1996 VA follow-up, the
Veteran complained of his legs swelling and examination
confirmed edema of the legs.
During an August 1996 VA examination, the Veteran complained
of leg, ankle and feet swelling; but no numbness or tingling
sensation. He stated that he tired easily on walking and
that his lower extremities swelled after walking a long
distance, every day, and any time of the day. On
examination, pulses were palpable down to the dorsalis pedis.
Even though no bruits were noted; varicose veins were noted
throughout both lower extremities. The Veteran had
occasional limping from the left knee with walking, along
with free movement of all extremities and good coordination.
Reflexes and sensation were intact. His skin was warm to
touch. The diagnoses included bilateral varicose veins of
the lower extremities and status post bilateral vein
stripping. In a late August 1996 VA skin examination report,
the diagnoses included tinea pedis with onychomycosis,
keratoses frozen with liquid nitrogen and ankle edema
probably secondary to venous insufficiency.
In a September 1996 rating decision, the RO granted service
connection for bilateral varicose veins and assigned a
single, initial 10 percent rating, effective February 23,
1996.
During a September 1997 RO hearing, the Veteran testified
that he had pain and swelling in both legs due to his
varicose veins; that he had had surgery on the left leg and
thigh varicose veins in 1996; and that he had varicose veins
above and below his knees in both lower extremities.
In a September 1997 rating decision issued in October 1997,
the RO assigned a total temporary rating (TTR) under the
provisions of 38 C.F.R. § 4.30 based on surgical or other
treatment necessitating convalescence, effective from March
27, 1996 to June 1, 1996; and a 30 percent rating for
bilateral varicose veins, effective June 1, 1996.
An October 29, 1997 VA primary care progress note reflects
that the Veteran had varicose veins in the lower extremities;
that pulses were 2+; and that no cyanosis or edema was noted
in his extremities. Between January 1997 and January 1999,
the Veteran was seen by VA primarily for degenerative joint
disease, right shoulder problems, erectile dysfunction,
hypertension, diabetes, and diabetic foot care.
At a January 1999 VA primary care follow-up, the Veteran
reported that he had been seen by a cardiologist at a local
hospital in Princeton, but the work-up and cardiac scans came
back negative. He was placed on Vasotec and had no
complaints at that time. On examination, there was no edema
noted in his extremities; however, varicose veins were
present. The findings were similar to those in May 1999 and
January 2000.
In a statement received by the RO on January 20, 1999, a
private internist, A. R. P., M.D., F.A.C.C., noted that the
Veteran had been having some bilateral leg and foot edema
off-and-on, especially after prolonged standing and that he
had a history of varicose veins. Dr. A. R. P. felt that the
Veteran's edema was more related to varicosities since he had
no evidence of congestive heart failure, renal disease, or
any other systemic disease which could account for his edema.
In a June 1999 statement, a private surgeon, W. H. E., M.D.,
F.A.C.S., indicated that the Veteran had had bilateral
stripping and ligation of his greater saphenous veins many
years ago; that he later had developed residual varicose
veins over the years which were producing intermittent
swelling and discomfort of both lower extremities; and that
this was a life-long condition and basically would never
actually be cured. Dr. W. H. E. added that the Veteran's
condition could be controlled, however, with elevation and
appropriate use of compression stockings; and opined that the
Veteran's present condition was related to his original
varicose vein problems and that this was quite common.
Enclosed were copies of a June 1999 evaluation and of a lower
extremity venous duplex scan, which revealed no evidence of
deep vein thrombosis (DVT) of either lower extremity at that
time. However, the scan also showed evidence of valvular
incompetence of the bilateral common femoral and popliteal
veins and of the right profunda femoral and superficial
veins. Multiple incompetent perforator and residual varicose
veins were noted, beginning in the distal calves on the right
and left, that were referable to the Veteran's symptoms of
pain, swelling and bilateral varicose veins.
In December 1999, following complaints of a possible blood
clot in the left groin and pain and swelling of the left
thigh of two-weeks' duration, the Veteran was hospitalized at
the Beckley VA Medical Center (VAMC) overnight for
observation to rule out DVT of the left leg. On examination,
there was no evidence of DVT. A deep venous Doppler of the
left lower extremity revealed no evidence of DVT. All deep
veins were well visualized and compressible with normal flow
and augmentation. The diagnoses included left lower
extremity DVT, ruled out.
When seen at a May 2000 VA primary care follow-up, the
Veteran complained of left knee pain. On examination of the
extremities, pulses were difficult to palpate-dorsalis
pedis. No loss of vibration sense was noted. Varicose veins
were present, no change in the last few years. During a
September 2000 VA follow-up, the Veteran complained of left
shoulder pain. On examination, dorsalis pedis pulses were
not palpable. The posterior tibialis showed varicose veins
and signs of PVD. At a January 2001 VA primary care
evaluation, no cyanosis or edema of the extremities was
found. It was difficult to palpate the dorsalis pedis and
posterior tibial pulses. Varicose veins were noted but there
was no loss of vibration sense. During a June 11, 2001 VA
follow-up, no cyanosis or edema of the extremities was found.
Varicose veins were present and appeared more than before.
Dorsalis pedis and posterior tibial pulses were absent with
no signs of compromise. There was decreased vibration sense
in the distal one-third of the foot. Monofilament
examination revealed decreased touch sensation.
In June 2001, private treatment records covering the period
from October 1998 to April 2001 were received from Dr. A. R.
P. but showed no complaints or treatment for varicose veins.
During a July 2001 VA peripheral nerves examination, the
Veteran complained of recurrent pain and paresthesia of his
feet, right worse than left. He was found to have varicose
veins of both legs in 1979, and later had surgery done. The
Veteran reported that he could walk better since the surgery,
but still had intermittent swelling of his feet. He claimed
that his legs would give way at times, causing him to fall.
The Veteran reported that he had been using a cane to steady
his gait since 1996. He claimed that he had stopped working
as a carpenter in 1986, because of recurrent pain over the
feet. On examination, motor power of the lower extremities
showed fair flexion of his thighs and fair flexion and
extension of his legs. He also had fair dorsiflexion of his
ankles only to about 90 degrees. Sensory examination showed
marked decreased pinprick sensation and decreased cold
sensation over his feet and vibratory sense over his toes and
ankles. The Veteran had better vibratory sense over the
knees. He had intact pinprick sensation over his legs and
thighs. Deep tendon reflexes showed no knee or ankle jerks
on both sides. He could walk well slowly, but had some
moderate difficulty on tandem walking with unsteadiness. No
significant edema of his feet and ankles was noted. His
right posterior tibialis and dorsalis pedis arterial pulses
were not palpable. His left posterior tibialis and dorsalis
pedis arterial pulses were well palpable. Varicose veins
were noted over both legs. The impression included
peripheral neuropathy affecting both lower extremities, right
worse than left, considered related to chronic diabetes
mellitus and associated ischemic neuropathy secondary to PVD.
Aside from the sensory impairment and subjective pain over
the feet with right worse than left, the Veteran also had
poor circulation over the right lower extremity, which might
contribute to his pain and numbness.
March 2002 nerve conduction studies (NCS) showed bilateral
sural sensory responses were unobtainable. Bilateral
peroneal and left tibial motor studies were borderline to low
CMAP amplitude, slow conduction velocity and prolonged F-
wave. Contemporaneous electromyography (EMG) results were
abnormal with evidence of diffuse sensorimotor neuropathy
with demyelinating and axonal features.
In an April 2002 statement, a private internist, I. A. K. R.,
M.D., noted that the Veteran's chief complaints were severe
pain and discomfort, intermittent swelling of the legs and
feet. He reported aching, along with fatigue while walking
and tiredness in the legs and feet, heaviness of legs and
feet, soreness and, at times, edema of the legs and feet. On
examination, there were scars on the left thigh and
varicosities of veins in both legs all the way down to the
ankles and feet. There was no localized tenderness in the
calf or bones of the legs. Tendon reflexes in the
extremities showed poor response. Venous studies revealed no
active blood clots. The impression was that the Veteran's
symptoms of pain of legs and feet, intermittent swelling of
legs and feet, and recurrent attacks of thrombophlebitis were
long standing in nature. Varicosities of veins of the legs
and feet for which he had had operations and had used
conservative measures, but the Veteran's symptoms have
continued and aggravated. Dr. I. A. K. R.'s advice was that
the Veteran's condition was incurable and his symptoms would
probably aggravate as time went on.
During a November 2002 VA primary care visit, the Veteran's
extremities showed no edema or cyanosis. Pulses and sensory
were intact. Moderate varicosities were noted in both lower
extremities, from the groin down to the ankles. Veins were
enlarged and tortuous. No cords were noted.
The Veteran's claim for an increase was received by the RO on
January 8, 2003, along with a September 2002 statement from
Dr. I. A. K. R. in which she reiterated most of her April
2002 findings. Dr. I. A. K. R. recommended that conservative
management be continued, that is, use of special stockings,
plenty of rest to his legs and feet, and elevation of the
Veteran's legs and feet quite often during the day. This
physician added that the Veteran's disability was increasing
progressively and was getting worse and that due to the
varicosities of his legs and feet, the Veteran was
permanently disabled, and would continue to have symptoms.
During a March 2003 VA examination, the Veteran complained of
recurrent chronic pain in the legs and fatigue after exertion
secondary to pain and weakness. He stated that he had
constant aching in the legs. His symptoms were improved
somewhat with elevation and with use of elastic hose;
however, the latter caused discomfort after being worn for a
prolonged period of time. Pain was 3 on a scale from 1 to
10. On examination, multiple tortuous varicose veins were
found in the upper left leg, which was worse than the right
in the upper part of the leg. He had similar veins in the
lower part of his legs, right worse than left lower leg. No
cords were noted. Calf measurement was 16 inches for both
legs. Multiple superficial varicosities were noted on both
feet. Pedal pulses were equal. Sensory was intact. There
was 1+/4+ edema of the lower extremities. Feet were warm to
touch. The diagnosis was moderate to severe varicosities of
the bilateral lower extremities with postphlebitic lower
extremities.
In the March 2003 rating decision on appeal, the RO
discontinued the single 30 percent evaluation for bilateral
varicose veins and reclassified the Veteran's service-
connected disability as two, separate disabilities-varicose
veins of the right lower extremity and varicose veins of the
left lower extremity and assigned each lower extremity a
separate 20 percent rating, effective January 20, 1998. In
doing so, the RO considered the statement from Dr. A. R. P.,
submitted by the Veteran and received by VA on January 20,
1999, as the date of claim. Under 38 C.F.R. § 3.114, the
increased ratings were allowed up to one year prior to the
date of claim.
At a February 2005 VA general surgery consult, the Veteran
gave a history of developing varicosities in the left upper
thigh since surgery performed in 1996. On examination, there
was dilated and tortuous superficial veins on the left
anterior medial thigh, which were soft to touch and showed no
evidence of thrombus within them. There was no evidence of
thrombophlebitis. There was evidence of varicosities in both
lower extremities. TED stocking were recommended to be worn
at all times, except while he was asleep. Without evidence
of thrombophlebitis or clot formation and with normal deep
venous study, an operation was not warranted or justified.
During an April 2005 VA follow-up, the Veteran complained of
electric shock-like pain on the medial aspects of both legs
between the groin and the knee described as 7 on a scale of 1
to 10 and of a dull ache in both legs below the knee
described as 3 on a scale of 1 to 10. He was concerned that
the TED hose had not solved the problem and described pain in
the left knee and both feet secondary to the stockings. The
Veteran was also concerned that the stockings were causing
pooling in the veins in his groin area just above the level
of the TED elastic band. He indicated that the stockings and
standing made the pain worse, while elevating his feet made
the pain better. On examination, the Veteran's feet were
cool and his toes erythematous (red) without edema.
Neurological testing was grossly intact. The assessment was
incompetent valves of superficial veins in lower extremities.
Some adjustments to the TED stockings were recommended.
In a July 13, 2005 VA general surgery clinic note, the Chief
of Ambulatory Surgery indicated that he had seen the Veteran
for incompetent perforators and superficial veins in the
lower extremities; that the Veteran continued to have
difficulty managing with the use of compression stockings, as
he had so many veins; that the compression hose constricted
the veins to the point where the Veteran's toes began to turn
blue; that he continued to have unsightly veins that were
causing him discomfort; and that, over a period of time, the
Veteran would be unable to walk on his legs. This VA surgeon
recommended either Ace bandages at the Veteran's comfort
level or continued use of TED stockings with very little
exercise and elevation of his legs most of the day. The VA
surgeon added that surgery would not help and that the
Veteran's veins had valid incompetencies both in the deep and
superficial veins.
At a January 2006 VA emergency room (ER) visit, the Veteran
report that he fell and thought that he had ruptured several
varicose veins on the back of his left leg two days ago. He
also had some knee pain and pain with walking and swelling on
the lateral leg below the knee. The Veteran reported muscle
cramps. On examination, he had pain on palpation of the left
posterior knee without ecchymosis or abnormalities noted.
The left leg had small varicosities with possible micro, but
no obvious large, ruptures; possible mild edema of the
lateral lower leg; and mild tenderness. Motor and sensory
testing was normal. The assessment was left leg strain and
varicose veins.
During a June 2006 VA ER visit, the Veteran complained of
varicose veins in both legs and having had a feeling of
popping/warmth sensation in both lower legs a few days ago.
He was worried about infection. He stated that he was unable
to wear TED hose and that he wanted the red areas checked on
his lower extremities. Pain was 4 on a scale of 1 to 10,
dull and achy at the lower extremity sites. The Veteran had
a history of diabetic foot ulcers in the past. On
examination of the lower extremities, diffuse varicose veins
and spider veins were noted bilaterally. There were small
ecchymotic (discolored)/swollen areas at the anterior ankles
bilaterally with no signs or symptoms of infection. No
warmth to touch was noted. Edema of 1+ was found in both
ankles. Except for decreased sensorium at both feet,
neurological examination was normal. The assessment was
ruptured varicose veins at ankles.
At an August 2006 VA primary care follow-up, the Veteran
complained that his varicose veins on his legs were becoming
more painful especially when walking. The Salem VAMC refused
to do another surgery, and gave him compression stockings
that they had to cut the toes out of as they turned blue due
to the stockings. But the Veteran claimed that this did not
help, but instead caused the veins to develop distally down
the legs. He indicated that he was working at a job where he
drove around to various tenants and collected rent. However,
he had to quit this job because of the proliferation of
varicose veins in his legs which were causing increased pain.
He was using a cane and had to keep his feet elevated as much
as possible to slow the progression of the condition. On
examination, the Veteran walked with an antalgic gait using a
cane and was in mild to moderate distress from pain. The
left inner thigh had grossly distorted, tortuous varicose
veins which ran downward behind the knee and encompassed the
lower leg and calf area. The right leg was much the same but
not quite as bad in the inner upper thigh area. The
assessment was proliferative bilateral lower extremity
varicose veins.
At an October 2006 VA primary care follow-up, the Veteran
complained that his varicose veins were spreading. When seen
in January 2007, new stockings were requested from
prosthetics.
In a January 10, 2007 VA surgery clinic note, the VA surgeon
recommended that the Veteran be considered disabled because
he continued to have large varicosities all the way up to his
left groin; however, his varicosities continued to bother and
disable him. A March 2007 VA follow-up surgery note
reflected that a Doppler ultrasound of the lower extremities
done six months ago, showed normal deep veins with no
evidence of thrombus. On examination, there were dilated and
tortuous superficial veins which were soft to touch and
showed no evidence of thrombus or of thrombophlebitis. There
was also evidence of varicosities in both lower extremities.
During a May 7, 2007 VA examination, the Veteran complained
of pain and swelling associated with his varicose veins in
his upper and lower legs, indicating that they had gotten
progressively worse. He wore thigh-high TED hose daily. The
examiner indicated that there was a history of varicose veins
and postphlebitic syndrome. The Veteran reported that he had
persistent edema and discoloration and pain at rest and that
his pain was constant. He also complained of aching,
fatigue, throbbing, and heavy feeling were present after
prolonged walking or standing, and were not relieved by
elevation or compression stockings. Ulcerations occurred
once a year or less and one was present at the time of
examination. On examination, massive board-like edema was
found, along with stasis pigmentation from the distal to the
mid-calf area. There was a 1-cm round ulcer on the medial
sole/arch border of both feet, with a scab covering that
appeared to be chronic. Multiple varicose veins, tortuous in
the left and right upper and lower legs were noted. The
Veteran had multiple superficial varicosities on his feet
with what appeared to be chronic ulcerations at the medial
sole/arch area of both feet. Pedal pulses were equal, +1.
Sensory was intact. There was 2+/4+ edema of both lower
extremities that was non-pitting. His feet were warm to
touch. The Veteran retired in 1986 because he was eligible
by age or duration of work. He was not currently employed
but had been a carpenter. The diagnosis was severe
varicosities of both lower extremities (up to the groin
level) with postphlebitic lower extremities. Exercise and
sports was precluded by the condition. His grooming was
moderately affected, while chores, shopping, recreation,
traveling, bathing, dressing and toileting were severely
affected.
At a July 2007 VA follow-up, the Veteran complained of leg
cramps, mostly at night. He wore compression stockings and
was given medication for leg cramps. An October 2007 VA
podiatry note revealed diminished sensation, faint dorsalis
pedis, and hyperpigmented skin changes of the feet. A
January 2008 VA clinic progress note reflected sensation
intact overall, but it was diminished by walking , faint
dorsalis pedis, and hyperpigmented skin changes of the feet.
When seen in the VA ER in March 2008, the Veteran complained
of painful varicose veins in both legs and severe itching for
the last month. The impression was dermatitis and varicose
veins (not tender on examination).
In a May 2008 rating decision, the RO granted TDIU, effective
May 7, 2007, noting that the VA examiner stated that the
Veteran's career as a carpenter was affected by inability to
stand or walk long periods of time.
During a March 2008 VA examination, the Veteran reported
constant, aching kind of pain with the intensity of 5 on a
scale of 1 to 10, which increased after prolonged standing
and walking to 6 on a scale of 1 to 10. He also complained
of bilateral leg tiredness and fatigue and burning after
standing as well as walking. The Veteran felt leg heaviness
especially after sitting with legs down. He reported that
walking a quarter to a half of a mile caused leg heaviness
with pain. The Veteran use to work as a union carpenter for
35 to 40 years, retiring in 1986, as his job required
constant standing, walking and sitting with legs down. After
that he qualified for SSA disability as well as VA
compensation. After 1986, he did small kinds of jobs such as
repairs and also work around his house. The Veteran reported
that he could no longer do this kind of work because of his
bilateral leg pain, heaviness, as well as constant aching and
fatigue of both lower extremities. He also could not do
clerical or sedentary type of work because he got leg
heaviness and constant pain during prolonged sitting. The
Veteran was completely independent in his activities of daily
living (ADLs), transfer and walking, but needed help from his
wife to put on and take off the compression hose. On
examination, the Veteran had bilateral varicose veins. There
were visible, palpable, nontender, and tortuous veins
extending from both groins to his ankles. No ulceration,
edema, stasis, pigmentation, as well as eczematous changes,
was noted. The Veteran had multiple spider veins around both
ankles and feet without saccular dilation. His gait was
antalgic and he walked with a cane. The diagnoses included
bilateral lower extremity varicose veins.
In an April 2009 statement, a private physician, P. C., M.D.,
indicated that he had reviewed the pertinent medical history
and documentation made available to him and opined that the
Veteran has suffered from debilitating pain in both lower
extremities secondary to chronic venous varicosities
(varicose veins). Despite stripping of both legs in 1981 and
a later superficial femoral vein excision in April 1996, his
symptoms of leg pain persisted. Since surgical options were
exhausted, he attempted conservative therapy with little or
no improvement in his pain, and noticeable worsening of his
symptoms with walking or prolonged sitting. Dr. P. C. added
that he had reviewed lay statements from the Veteran's wife
and neighbor that confirmed that the Veteran's varicose veins
(an easily identifiable malady by most laypersons) were a
significant source of pain (due, in part, to significant
swelling or edema) and certainly affected his ADLs for many
years. It was his opinion, that the Veteran's varicose veins
had prevented him from gainful employment, since at least the
time of his second surgery in 1996.
A subsequent April 2009 VA surgery clinic note reflected that
the Veteran had increased venous varicose veins sitting in
his left upper inner thigh as well as his right inner thigh,
despite continued wearing of compression stockings. The
Veteran continued to have issues with pain, which were
reminiscent of venous insufficiency. If this gave him severe
disability, the surgeon recommended that the Veteran not
exercise or walk and that he keep his legs elevated most of
the day.
In a July 2009 rating decision, the RO continued the separate
40 percent ratings for varicose veins of both lower
extremities and the TDIU.
III. Analysis
A. Disability Ratings
Disability evaluations are determined by application of the
criteria set forth in the VA's Schedule for Rating
Disabilities (Rating Schedule), which is based on average
impairment in earning capacity. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4 (2009). When a question arises as to which of
two ratings apply under a particular diagnostic code, the
higher rating is assigned if the disability more closely
approximates the criteria for the higher rating. 38 C.F.R. §
4.7. After careful consideration of the evidence, any
reasonable doubt remaining is resolved in favor of the
veteran. 38 C.F.R. § 4.3.
The veteran's entire history is to be considered when making
disability evaluations. See generally 38 C.F.R. § 4.1;
Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where
entitlement to compensation already has been established and
an increase in the disability rating is at issue, it is the
present level of disability that is of primary concern. See
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Moreover,
staged ratings are appropriate in any increased rating claim
in which distinct time periods with different ratable
symptoms can be identified. The relevant focus for
adjudicating an increased rating claim is on the evidence
concerning the state of the disability from the time period
one year before the claim was filed until VA makes a final
decision on the claim. Hart v. Mansfield, 21 Vet. App. 505
(2007).
Effective January 12, 1998, there was a change in the
criteria used to evaluate varicose veins that allowed for a
separate evaluation for each leg. Prior to this change both
legs were evaluated together.
Under the provisions of Diagnostic Code 7120, pertaining to
ratings for varicose veins, in effect prior to January 12,
1998, moderately severe varicose veins, where there was
bilateral involvement, involving the superficial veins above
and below the knee, with varicosities of the long saphenous
vein ranging in size from 1 to 2 centimeters in diameter,
with symptoms of pain or cramping on exertion and no
involvement of deep circulation, warranted a 30 percent
rating. Severe varicose veins, involving the superficial
veins above and below the knee, with involvement of the long
saphenous vein ranging over 2 centimeters in diameter, marked
distortion and sacculation, with edema and episodes of
ulceration, and no involvement of deep circulation, warranted
a 40 percent (unilateral) or 50 percent (bilateral) rating.
Pronounced varicose veins manifested by the findings for a
severe rating with secondary involvement of the deep
circulation, as demonstrated by Trendelenburg's and Perthe's
tests, with ulceration and pigmentation, warranted a 50
percent (unilateral) and 60 percent (bilateral) rating. 38
C.F.R. § 4.104, Diagnostic Code 7120 (in effect prior to
January 12, 1998).
Since January 20, 1998, the Veteran's service-connected
varicose veins of the right and left lower extremities have
been evaluated under revised Diagnostic Code 7120. Under the
revised diagnostic code, a 20 evaluation is warranted for
persistent edema, incompletely relieved by elevation of an
extremity, with or without beginning stasis pigmentation or
eczema. A 40 percent evaluation is warranted for persistent
edema and stasis pigmentation or eczema, with or without
intermittent ulceration. A 60 percent rating is warranted
for persistent edema or subcutaneous induration, stasis
pigmentation or eczema, and persistent ulceration. A maximum
100 percent rating is warranted for massive, board-like edema
with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic
Code 7120 (in effect from to January 12, 1998).
Prior to May 7, 2007
In light of the above and after careful review of the
evidence of record, the Board finds that the preponderance of
the evidence is against separate ratings in excess of
20 percent for the Veteran's lower extremity varicose veins,
prior to May 7, 2007. In a January 1999 statement, Dr. A. R.
P. indicated that the Veteran had bilateral leg and foot
edema "off and on," especially after prolonged standing.
In a June 1999 statement, Dr. W. H. E. noted that the
Veteran's varicose veins had produced intermittent swelling
and discomfort of the lower extremities, which could not be
cured, but could be controlled with elevation and appropriate
use of compression stockings. He attached a copy of a June
1999 lower extremity venous duplex scan which showed no DVT
of either extremity, but showed varicose veins with multiple
incompetent perforator veins. A December 1999 VA deep venous
Doppler examination of the left lower extremity showed that
all veins were well visualized and compressible with normal
flow and augmentation. The impression was that there was no
evidence of DVT
The Veteran's lower extremities were examined by VA in
September 1998, January 2000, January 2001, August 2002, and
November 2002, and each time, the VA examiner stated there
was "no edema." It was consistently noted that the Veteran
had not lost vibratory sense in the lower extremities, but
had lost some sensation in the feet. December 1999 private
medical records show that the Veteran was seen twice that
month and that there was no edema noted in the lower
extremities and peripheral pulses were good. A July 2001 VA
examination report showed "no significant edema" of the
feet and ankles at that time. January 2001, August 2002, and
November 2002 VA treatment records reflect no cyanosis of the
lower extremities. A November 2002 VA treatment report
reflects that the Veteran had moderate varicosities of the
lower extremities, which were enlarged and torturous.
In an April 2002 statement, Dr. I. A. K. R. indicated that
physical examination revealed varicosities of veins of the
lower extremities, all the way down to the ankles and feet.
There was no localized tenderness in the calf or bones of the
legs. She noted the findings made in venous studies and that
Dr. W. H. E. was correct that the Veteran's condition was a
chronic one without any cure. Dr. I. A. K. R. stated it
would probably get worse. In a September 2002 follow-up
letter, Dr. I. A. K. R. reiterated that the Veteran's
symptoms would only get worse in time. She attributed his
complaints of tiredness, fatigue, edema, and pain to the
varicose veins of the lower extremities and multiple attacks
of thrombophlebitis. She added, "Essentially speaking, he
can use special stockings, give plenty of rest to his legs
and feet, and he might have to elevate his legs and feet
quite often during the daytime." Dr. I. A. K. R. concluded
she had no other suggestions to assist with these problems
and stated the Veteran was "permanently disabled."
A March 2003 VA examination report shows the Veteran reported
chronic pain in his legs and fatigue after exertion. He
noted that the symptoms improved with elevation and with use
of elastic hose, but that prolonged use of the hose caused
discomfort. Physical examination revealed multiple varicose
veins with torturous ones in the left upper leg. There was
1+/4+ edema of the lower extremities. The diagnosis was
moderate to severe varicosities of the bilateral lower
extremity with postphlebitic lower extremities.
A February 2005 VA outpatient treatment report reflects that
a Doppler ultrasound of the lower extremities conducted six
months prior showed "normal deep veins with no evidence of
thrombus." Physical examination revealed dilated and
torturous superficial veins which were soft to touch and
showed no evidence of thrombus within them. There was no
evidence of thrombophlebitis. The Veteran had varicosities
in the right and left calves with the rest of the examination
being "within normal limits." The examiner stated that he
and the chief of ambulatory surgery determined there was no
evidence of thrombus with the varicose veins and felt that
the Veteran would likely benefit from thigh-high stockings to
be worn at all times except while sleeping. He added,
"Without evidence of thrombophlebitis or clot formation and
with the normal deep venous study, we feel that an operation
at this time is not warranted or justified."
At an April 2005, the Veteran follow-up complained that the
stockings had not solved the problem of pain when standing,
but noted that the pain was better when he elevated his lower
extremities. He expressed concern that the stockings were
causing pooling in the veins. Physical examination revealed
no edema of the lower extremities. The impression was
incompetent valves of superficial veins of the lower
extremities. A July 2005 VA outpatient treatment report
reflects that the Veteran reported he was having difficulty
with the compression hose and how they would turn his toes
blue. The examiner stated that the hose were causing the
Veteran discomfort and that over a period of time, "he will
be unable to walk on these legs." He described the
Veteran's varicose veins as unsightly and that the Veteran
had incompetencies both in the deep and superficial veins.
He added that, "This should suffice as a letter to his Board
for decision regarding his service connection."
At the July 2005 hearing before the undersigned, the Veteran
testified he had undergone surgery for his varicose veins in
1981, at which time he had 75 incisions on both legs. He
stated he was given support hose in 1994 or 1995, which made
his toes turn purple and scared him because he was worried
about getting gangrene. The Veteran stated that his left leg
was worse than the right. He testified that he was referred
to a vascular surgeon in February 2005, who told him that he
was afraid to operate because of fear that the left leg would
have to be amputated.
The Board finds that the symptoms described above are
indicative of no more than a 20 percent rating for each lower
extremity. See 38 C.F.R. § 4.104, Diagnostic Code 7120. As
shown above, the Veteran's lower extremities have been
examined on multiple occasions from 1998 to 2007. Edema was
noted on a few occasions, which would not establish a finding
of persistent edema. The Veteran reported that his
discomfort lessened when he elevated his lower extremities,
which is contemplated by the 20 percent ratings.
In order to warrant a 40 percent rating, the Veteran's
varicose veins need to cause persistent edema and stasis
pigmentation or eczema. Intermittent ulceration is optional
and not a symptom that is necessary to meet the requirements
for the 40 percent rating. The Veteran met neither of the
two symptoms contemplated by the 40 percent rating prior to
May 7, 2007. As stated above, when the Veteran's lower
extremities were examined in September 1998, December 1999,
January 2000, January 2001, August 2002, November 2002, and
April 2005, each examiner stated there was "no edema." In
the February 2005 treatment record, neither the presence nor
the absence of edema was noted. Once the examiner reported
the Veteran's varicosities, he stated that the rest of the
examination was "within normal limits." Drs. A. R. P, W.
H. E. and I. A. K. R. have all stated that the Veteran has
intermittent edema. Such findings are evidence against a
finding that, prior to May 7, 2007, the Veteran had
"persistent edema" In January 2001, August 2002, and
November 2002, cyanosis was reported to be absent. No
medical professional, either VA or private, has stated the
lower extremities show stasis pigmentation or eczema, prior
to May 7, 2007. The Veteran himself had not reported any
discoloration of the lower extremities. Thus, his symptoms
did not approximate those contemplated for a 40 percent
rating for each lower extremity, prior to May 7, 2007.
The Board acknowledges that, in a July 2005 VA general
surgery clinic note, the VA surgeon stated that "over a
period of time," the Veteran would be unable to walk on his
legs. That statement relates to symptoms that might occur in
the future and not to the then current level of the Veteran's
disabilities. Thus, the Board finds that an increased rating
based upon this finding alone, prior to May 7, 2007, is not
warranted. The Board also is aware of the April 2009 private
physician review and opinion submitted by the Veteran's
attorney indicating that he felt the Veteran was unemployable
back to 1996. However, Dr. P. C.'s opinion appears to be
based on a review of selected medical records, not a review
of the entire claims file, and is entirely devoid of any
references to the Veteran's several nonservice-connected
disabilities, including CAD, diabetes, and PVD and foot
problems related to the Veteran's diabetes, and their affect
on his employability.
The Veteran is competent to report his symptoms. To the
extent that he asserted that his disability warranted more
than the single 30 percent rating for both lower extremities,
he was correct, and the RO assigned separate 20 percent
ratings for each lower extremity, bringing him to a combined
40 percent rating for the lower extremities, prior to May 7,
2007. However, to the extent that the Veteran asserts he
warrants more than a 20 percent rating for each lower
extremity, prior to May 7, 2007, the medical findings do not
support his assertions. The Board has considered the
Veteran's complaints of pain and difficulty walking, but
finds that the 20 percent rating for each lower extremity
encompasses those complaints, as the 20 percent rating
contemplates persistent edema, incompletely relieved by
elevation of the extremity, with or without beginning stasis
pigmentation or eczema, and the objective records reflect
that the Veteran did not have persistent edema, prior to May
7, 2007. The Veteran reported that when he elevated his
legs, the discomfort is lessened, as contemplated by the
20 percent rating. The Veteran testified that he had been
told that surgery had not been recommended because the doctor
thought that his left leg might have to be amputated.
However, the findings made in a February 2005 VA treatment
record reflect that the examiners determined that surgery was
neither "warranted" nor "justified."
Period from May 7, 2007
The Board finds that the preponderance of the evidence is
against separate ratings in excess of 40 percent for each
lower extremity, from May 7, 2007. It was not until a May 7,
2007 examination, that the Veteran complained of persistent
edema and discoloration and pain at rest and that his pain
was constant. He reported that aching, fatigue, throbbing,
and heavy feeling were present after prolonged walking or
standing, and were not relieved by elevation or compression
stockings. Ulcerations occurred once a year or less and one
was present at the time of examination. On examination,
massive board-like edema was found, along with stasis
pigmentation from the distal to the mid-calf area. There was
a 1-cm round ulcer on the medial sole/arch border of both
feet, with a scab covering that appeared to be chronic.
Multiple varicose veins, tortuous in the left and right upper
and lower legs were noted. The Veteran had multiple
superficial varicosities on his feet with what appeared to be
chronic ulcerations at the medial sole/arch area of both
feet. Pedal pulses were equal, +1. Sensory was intact.
There was 2+/4+ edema of both lower extremities that was non-
pitting. His feet were warm to touch. The diagnosis was
severe varicosities of both lower extremities (up to the
groin level) with postphlebitic lower extremities. Exercise
and sports was precluded by the condition. The VA examiner
added that the Veteran's grooming was moderately affected,
while chores, shopping, recreation, traveling, bathing,
dressing and toileting were severely affected.
Even though the Veteran reported, during a March 2008 VA
examination, constant, aching kind of pain with the intensity
of 5 on a scale of 1 to 10, which increased after prolonged
standing and walking to 6 on a scale of 1 to 10; feeling leg
heaviness with pain especially after sitting with legs down
or walking a quarter to a half of a mile; and complained of
bilateral leg tiredness and fatigue and burning after
standing as well as walking. The Veteran was completely
independent in his ADLs, transfer and walking but needed help
from his wife to put on and take off the compression hose.
On examination, the Veteran had bilateral varicose veins.
There were visible, palpable, nontender, and tortuous veins
extending from both groins to his ankles. There was no
ulceration, edema, stasis, pigmentation, as well as
eczematous changes. The Veteran had multiple spider veins
around both ankles and feet without saccular dilation. His
gait was antalgic and he walked with a cane. The diagnoses
included bilateral lower extremity varicose veins.
Thus, the objective medical findings of record failed to show
that the Veteran had persistent edema or subcutaneous
induration, stasis pigmentation or eczema, and persistent
ulceration or massive, board-like edema with constant pain at
rest, so as to warrant either a 60 or 100 percent rating.
In this regard, the Board acknowledges that, in an April 2009
statement, Dr. P. C., M.D., indicated that he had reviewed
the pertinent medical history and documentation made
available to him and opined that the Veteran has suffered
from debilitating pain in both lower extremities secondary to
chronic venous varicosities (varicose veins). Despite
stripping of both legs in 1981 and a later superficial
femoral vein excision in April 1996, his symptoms of leg pain
persisted. Since surgical options were exhausted, he
attempted conservative therapy with little or no improvement
in his pain, and noticeable worsening of his symptoms with
walking or prolonged sitting. Dr. P. C. added that he had
reviewed lay statements from the Veteran's wife and neighbor
that confirmed that the Veteran's varicose veins (an easily
identifiable malady by most laypersons) were a significant
source of pain (due, in part, to significant swelling or
edema) and certainly affected his ADLs for many years. It
was his opinion, that the Veteran's varicose veins had
prevented him from gainful employment, since at least the
time of his second surgery in 1996. However, in light of the
many evaluations between April 1996 and May 2007, showing the
presence of PVD related to nonservice-connected diabetes and
the absence of edema and the Veteran's statements of some
improvement in his symptoms with the use of compression
stockings and elevation of his legs, the Board does not find
this opinion persuasive. Thus, the Board concludes that
separate ratings of 40 percent, and no more, are warranted
for the period from May 7, 2007.
Although the SSOCs issued in February 2008 and February 2009
inform the Veteran of the provisions of 38 C.F.R.
§ 3.321(b)(1), relating to the assignment of an
extraschedular rating, it does not appear that the RO
expressly considered referral of the case to the Under
Secretary for Benefits or the Director, Compensation and
Pension (C&P) Service for the assignment of an extraschedular
rating. This regulation provides that in an exceptional case
where the schedular standards are found to be inadequate, VA
is authorized to refer the case to the Under Secretary or the
Director, C&P for assignment of an extraschedular rating
commensurate with the average earning capacity impairment.
In this regard, the record reflects that the Veteran has not
required any hospitalization for his service-connected
varicose vein disability(ies), since his last surgery in
April 1996, except for overnight observation to rule out DVT
of the left leg in December 1999. A deep venous Doppler of
the left lower extremity, at that time, revealed no evidence
of DVT. All deep veins were well visualized and compressible
with normal flow and augmentation. The diagnoses included
left lower extremity DVT, ruled out. Moreover, VA and
private physicians agree that, without evidence of
thrombophlebitis or clot formation and with the normal deep
venous studies, surgery is not warranted or justified.
During the May 2007 VA examination, the Veteran reported that
he retired in 1986 because he was eligible by age or duration
of work. However, during an August 2006 VA follow-up, the
Veteran reported that he had to quit his job where he drove
around to various tenants and collected rent, because of the
proliferation of varicose veins in his legs which were
causing increased pain. But, the Board notes that, in
addition to varicose veins, the Veteran has multiple other
nonservice-connected disabilities-CAD, diabetes,
degenerative joint disease, right shoulder problems,
hypertension, diabetes, diabetic foot ulcers, and PVD-the
latter disability has been linked to his nonservice-connected
diabetes and would result in many of the symptoms that the
Veteran ascribes to his varicose veins. He has stated that
he has to elevate his legs to relieve his symptoms of pain
and swelling. However, none of his manifestations are in
excess of those contemplated by the scheduler criteria.
Thus, the application of the regular schedular standards
utilized to evaluate the severity of his varicose vein
disability is not otherwise rendered impractical. See Thun
v. Peake, 22 Vet. App. 111, 115 (2008). In the absence of
such factors, the Board finds that the requirements for
referral of the case for consideration of an extraschedular
evaluation under the provisions of 38 C.F.R. § 3.321(b)(1)
have not been met.
Taking the Veteran's contentions into account and the medical
findings, separate ratings in excess of 20 percent, prior to
May 7, 2007, and separate ratings in excess of 40 percent,
from May 7, 2007, are not warranted for each lower extremity.
The preponderance of the evidence is against the claims for
increased ratings, and there is no doubt to be resolved.
Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).
B. Earlier Effective Date for a TDIU
The Veteran's attorney claims that a TDIU was warranted from
March 1996, since his condition prevented him from gainful
employment and the evidence supported a higher schedular
rating for varicose veins prior to the May 2007 VA
examination.
The Board notes that the effective date for an increased
rating/TDIU will be the earliest date as of which it is
factually ascertainable that an increase in disability had
occurred, provided a claim is received within one year from
such date; otherwise, the effective date for an increased
rating will be the date of receipt of the claim, or the date
entitlement arose, whichever is later. 38 U.S.C.A. §
5110(a)(b); 38 C.F.R. § 3.400(o). A claim for a TDIU is, in
essence, a claim for an increased rating and vice versa.
Norris v. West, 12 Vet. App. 413, 420 (1999). A TDIU claim
is an alternate way to obtain a total disability rating
without recourse to a 100 percent evaluation under the Rating
Schedule. See, e.g., Parker v. Brown, 7 Vet. App. 116, 118
(1994). Any claim for an increased rating is also a claim
for a 100 percent evaluation under the Rating Schedule. See,
e.g., AB v. Brown, 6 Vet. App. 35 (1993).
Once a veteran: (1) submits evidence of a medical disability;
(2) makes a claim for the highest rating possible; and (3)
submits evidence of unemployability, the requirement in 38
C.F.R. § 3.155(a) that an informal claim "identify the
benefit sought" has been satisfied and VA must consider
whether the veteran is entitled to a TDIU rating. Roberson
v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see also Norris,
12 Vet. App. 413; VAOPGCPREC 12-2001 (July 6, 2001).
Except in the case of simultaneously contested claims, a
claimant, or his or her representative, must file a notice of
disagreement (NOD) with a determination by the agency of
original jurisdiction (here, the RO) within one year from the
date that that agency mails notice of the determination to
him or her. Otherwise, that determination will become final.
The date of mailing the letter of notification of the
determination will be presumed to be the same as the date of
that letter for purposes of determining whether an appeal has
been timely filed. 38 C.F.R. § 20.302.
A determination on a claim by the agency of original
jurisdiction of which the claimant is properly notified is
final if an appeal is not perfected as prescribed in 38
C.F.R. § 20.302. 38 C.F.R. § 20.1103.
A claim is defined by regulation as "a formal or informal
communication in writing requesting a determination of
entitlement, or evidencing a belief in entitlement, to a
benefit." 38 C.F.R. § 3.1(p). Any communication or action
that demonstrates intent to apply for an identified benefit
may be considered an informal claim. 38 C.F.R. § 3.155(a).
Such an informal claim must identify the benefit sought. 38
C.F.R. § 3.1(p) defines application as a formal or informal
communication in writing requesting a determination of
entitlement or evidencing a belief in entitlement to a
benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed.
Cir. 1999).
VA is required to identify and act on informal claims for
benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p),
3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196,
198-200 (1992). Upon receipt of an informal claim, if a
formal claim has not been filed, an application form will be
forwarded to the claimant for execution. If received within
one year from the date it was sent to the claimant, it will
be considered filed as of the date of receipt of the informal
claim. When the informal claim pertains to an increased
evaluation for a service-connected disability, the request
will be accepted as a claim. 38 C.F.R. § 3.155(c).
Once service connection has been established, receipt of
specified types of medical evidence, including VA examination
reports, will be accepted as an informal claim for increased
benefits. 38 C.F.R. § 3.157. For example, the date of
outpatient or hospital examination or date of admission to a
VA hospital will be accepted as the date of receipt of such a
claim. 38 C.F.R. § 3.157(b)(1). Similarly, under the
provisions of 38 C.F.R. § 3.157(b)(2), (3), an informal claim
for increase will be initiated upon receipt of evidence from
a private physician or layman or from state and other
institutions, including SSA. See Servello v. Derwinski, 3
Vet. App. 196, 200 (1992) (holding that a VA examination
report constituted an informal claim for a TDIU). VA must
look to all communications from a claimant that may be
interpreted as applications or claims-formal and informal-
for benefits and is required to identify and act on informal
claims for benefits. Id. at 198. If VA fails to forward an
application form to the claimant after receipt of an informal
claim, then the date of the informal claim must be accepted
as the date of claim for purposes of determining an effective
date. Id. at 200.
A TDIU may be assigned where the schedular rating for the
service-connected disabilities is less than 100 percent when
it is found that the veteran's service-connected disabilities
render him unable to secure or follow a substantially gainful
occupation. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The
regulatory scheme for a TDIU provides both objective and
subjective criteria. Hatlestad v. Derwinski,
3 Vet. App. 213, 216 (1992); VAOPGCPREC 75-91 (Dec. 27,
1991). The objective criteria, set forth at 38 C.F.R. §
3.340(a)(2), provide for a total rating when there is a
single disability or a combination of disabilities that
results in a 100 percent schedular evaluation. Subjective
criteria, set forth at 38 C.F.R. § 4.16(a), provide for a
TDIU when, due to service-connected disability, a veteran is
unable to secure or follow a substantially gainful
occupation, and has a single disability rated 60 percent or
more, or at least one disability rated 40 percent or more
with additional disability sufficient to bring the combined
evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341,
4.16(a). In exceptional circumstances, where the veteran
does not meet the aforementioned percentage requirements, a
total rating may nonetheless be assigned upon a showing that
the individual is unable to obtain or retain substantially
gainful employment. 38 C.F.R. § 4.16(b).
Normally, the effective date assignable for an increased
rating and/or a TDIU rests on two separate, relatively simple
determinations. See 38 C.F.R. § 3.400(o)(1) and (2). First,
there needs to be a finding as to the date on which the
appellant initiated his increased rating/TDIU claim by formal
or informal claim. Second, there needs to be a finding
regarding on what date the medical evidence of record showed
that the appellant's entitlement to a higher rating or a TDIU
arose, that is, at what point in time in the case of a TDIU
did his service-connected disabilities, alone, render him
unable to secure or follow a substantially gainful
occupation. See 38 U.S.C.A. § 5110(b); 38 C.F.R. §§ 3.151,
3.400(o), 4.15, 4.16.
The Board notes that, in an unappealed September 1997 rating
decision issued in October 1997, the RO assigned a TTR under
the provisions of 38 C.F.R. § 4.30 based on surgical or other
treatment necessitating convalescence, effective from March
27, 1996 to June 1, 1996; and a 30 percent rating for
bilateral varicose veins, effective June 1, 1996. As the
Veteran did not appeal this decision, it became final. See
38 C.F.R. § 20.1103. Thus, the earliest date that a TDIU
could have been assigned would be June 1, 1996.
Following the issuance of that decision, an October 29, 1997
VA primary care progress note reflects that the Veteran had
varicose veins in the lower extremities; that pulses were 2+;
and that there was no cyanosis or edema noted in his
extremities. Between January 1997 and January 1999, the
Veteran was seen by VA primarily for degenerative joint
disease, right shoulder problems, erectile dysfunction,
hypertension, diabetes, and diabetic foot care. At a January
1999 VA primary care follow-up, the Veteran reported that he
had been seen by a cardiologist at a local hospital in
Princeton, but the work-up and cardiac scans came back
negative. He was placed on Vasotec and had no complaints at
that time. On examination, there was no edema noted in his
extremities; however, varicose veins were present. The
findings were similar in May 1999 and January 2000.
In this case, it was not until January 20, 1999, that the RO
received a private physician's statement submitted by the
Veteran and a request for an increased rating. As the RO
determined the Veteran's submission constituted an informal
claim for an increased rating in excess of 30 percent for his
bilateral varicose vein disability(ies). The Board agrees
and finds that this claim also was a claim for a TDIU, under
the holding in Norris. Thus, the date of claim is January
20, 1999.
Based upon a January 2008 rating decision, the Veteran's
service-connected disabilities of varicose veins of the both
lower extremities (separately rated as 40 percent disabling)
and residuals of a granuloma of the left forearm (rated
noncompensable); for a combined 70 disability rating as of
May 7, 2007, first met the schedular criteria for a TDIU.
Resolving the benefit of the doubt in the Veteran's favor, in
a May 2008 rating decision, the RO determined that the
Veteran's varicose veins alone rendered him unable to secure
or follow a substantially gainful occupation. In support,
the RO pointed to the fact that the Veteran was a carpenter,
that his varicose veins affected his ability to stand or walk
for long periods of time, and that the Veteran asserted that
he could not do sedentary jobs because sitting with his legs
handing down caused heaviness, pain and burning sensation.
The May 2007 VA examiner apparently attributed such signs and
symptoms to the Veteran's service-connected varicose vein
disability(ies) without consideration of his nonservice-
connected PVD and diabetic foot symptomatology. Based on the
totality of the evidence and the reasons given earlier, and
resolving all reasonable doubt in the Veteran's favor, the
Board agrees that the earliest date on which it was factually
ascertainable that his varicose veins precluded the Veteran
from substantially gainful employment is May 7, 2007. See 38
C.F.R. § 3.102; see also Mittleider v. West, 11 Vet. App.
181, 182 (1998) (per curiam) (holding that, when it is not
possible to separate the effects of the service-connected
disability from a nonservice-connected condition, such signs
and symptoms must be attributed to the service-connected
disability). Thus, the preponderance of the evidence is
against an effective date earlier than May 7, 2007, for the
award of TDIU.
(CONTINUED ON NEXT PAGE)
ORDER
A rating in excess of 20 percent for varicose veins of the
right lower extremity, prior to May 7, 2007, is denied.
A rating in excess of 20 percent for varicose veins of the
left lower extremity, prior to May 7, 2007, is denied.
A rating in excess of 40 percent for varicose veins of the
right lower extremity, from May 7, 2007, is denied.
A rating in excess of 40 percent for varicose veins of the
left lower extremity, from May 7, 2007, is denied.
An effective date earlier than May 7, 2007, for the grant of
a TDIU is denied.
____________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs